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Orari v Tamean [1981] PGNC 10; N323(M) (9 February 1981)

N323(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 133 OF 1980

BETWEEN:

TOMI ORARI
APPELLANT

AND

BENSON TAMEAN
RESPONDENT

Kainantu: Quinlivan AJ
6 February 1981; 9 February 1981

APPEAL - functions of appeal court - need for those Magistrates who are afraid to cease to be on the defensive - Appeal of McCallum explained.

SENTENCES - cumulative observations on.

QUINLIVAN AJ: The Appellant was convicted before the Local Court at Kainantu on the 24th October, 1979 (that is, more than fifteen months ago) on two separate charges of stealing and the court imposed a sentence of 6 months imprisonment in respect of each charge. He appeals on the grounds that the two individual sentences of six months were excessively severe. Moreover - and this is his main ground of appeal - he claims that the Magistrate was wrong in law in making them (as he did make them) CUMULATIVE so that they total twelve months. There is no appeal against the conviction itself.

Before I deal with the appeal I wish first to describe the rules that bind me. I have already referred to these in Appeal of MICHAEL DAI KAUPA^[1]. Much of what I then said applies here and, for the sake of brevity I would like what I then said to be "read as one with" what I am saying now. The Kaupa appeal, however, was against conviction and there is no such appeal in this case. The rules which bind me are, in my opinion, best stated in the judgment of our first post-war Chief Justice, Phillips C.J. in Appeal of Robertson^[2] in this words:

"The appellant has asked this Court to review... the sentence imposed on her by the Magistrate. This Court must first remind itself that when a magistrate or justice is considering the question of penalty of punishment for an offence, he is permitted, within the limits prescribed by law in regard to that offence, to use his discretion: that discretion must, of course, be a "judicial discretion", one based on principle, justice and reason, not one based on mere caprice or an arbitrary mood. As to the principles on which an appellate court should act, when reviewing a sentence imposed by a magistrate or justice, the ... (legislation is silent. Guidance has to be sought elsewhere and is to be found in decisions of the House of Lords and the High Court of Australia. In Storie v. Storie, 1950 A.L.R. 470, at 472, Latham C.J., referred to three House of Lords cases -Evans v. Bartlam (1937) A.C. 473; Charles Osenton & Co. v. Johnston (1942) A.C. 130; and Blunt v. Blunt (1943) A.C. 517: and he summarised the principles established by those decisions as follows:

"(Where) an appellate Court is reviewing an order made in the execution of a discretion conferred by law, the appellate court may reverse the order either if it is satisfied that no weight, or that no sufficient weight, has been given to relevant considerations, or if it is satisfied that an injustice has been done by the order appealed against."

In Cranssen v. The King^[3] (an appeal from New Guinea) Dixon, Evatt and McTiernan, JJ., said:

"The appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the Court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may include others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.

In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of court of first instance restrain the intervention... cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority. Moreover, this court has always recognized that, in appeals from courts of the territories, there may be many matters upon which the court appealed from is in a better position to judge than we can be. It is familiar with the special conditions which obtain in the territory and thus should be better able to estimate the importance of considerations arising out of them, or the significance of facts associated with them."

In Harris v. The Queen^[4] (an appeal from Papua), the High Court quoted the passage I have just read from Cranssen v. The King, and the High Court re-affirmed and the principles stated therein." (My underlining)

It is clear the work of an appeal court is highly specialized and, provided the court appealed from has not "taken a wrong turning" or acted on a wrong principle or misdirected itself, it would be improper for its decision to be interfered with. After all, the Legislature has decreed that it shall be the court appealed from, and not the appeal court, that shall "hear and determine" that type of case and the Legislature, alone, is entrusted with the authority to decide that. The duty of this court is to see that the other tribunals do their duty.

I mention this for two reasons. The first is that it is the law which binds me in this appeal. I also mention it because Mr. Neill (learned Counsel for the Appellant) informs me that the Magistrate’s report - which is not on the file which was given to me by the Registrar- is not helpful because it goes off on a wrong tack and attacks the appeal on the basis that, if it had been an appeal against a decision in the District Court, it would have been lodged "out of time".

I do not know why the magistrate’s report is not on the file before me. Perhaps it is because the appeal is fifteen months old - which is an unconscienable time - and it has become lost. But in view of what Mr. Neill has said it is a waste of time and effort my looking at the Report. More than that, it shows that the Magistrate does not understand what his proper function is in relation to appeals.

It is important that all Magistrates realize that, when the Constitution says (as it does in section 37(15) in very plain words) that

"Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law"

it is the duty of everybody to do what they can to make sure that the appeal procedure works smoothly and effortlessly. It does nobody any good to attempt to argue about whether the appellant ought, or ought not, to have a right to appeal. The fact is that he is a "person convicted of an offence" and the Constitution says that EVERY such person - "every person convicted of an offence" - shall have a right of appeal. That is the end of that part of the matter and, as I said in Appeal of Kaupa, it is the start of something quite different.

I do not want to go too far into what I am now about to say because it is, after all, something which only arises in passing. The point, however, is the Magistrates must cease to be on the defensive. It is true that, when one has done one’s best it is difficult to view with equanimity the actions of others who come in and, seemingly without devoting the proper amount of thought or effort to what they do, they undo all that work. But the fact is that "all that work and effort" might have been wrong. I used the phrase "taking a wrong turning" a moment ago and I did that because it was the phrase which was used by Lord Upjohn in the famous case of "S" (an Infant) v. Manchester City Recorder^[5] when he said that all the courts in England (including the very highest court of all, the House of Lords)

"plainly took a wrong turning in Sheridan’s Case (in 1936 and have continued, in regard to a particular point, to be wrong ever since)"^[6]

The point is that, if the highest court of all in England can be wrong, then it must be clear that no Papua New Guinean magistrate in the field ought to be left feeling ashamed if he or she, after doing his or her best, is also declared by an appeal court to have made a wrong turning.

Magistrates must not waste the opportunity which they have of putting their side of the story before the appeal court. In this regard there is, I fear, a certain amount of misunderstanding in existence about just what Chief Justice Frost was saying in Appeal of McCallum^[7] when he said:

"At the hearing application was made ... to tender a further report by the magistrate pursuant to the amended ground of appeal. Upon this matter I had the assistance of English authority (where) ... the Court of Appeal has said it would not be slow to censure - Bromley v. Bromley per Willmer L.J... For the (Magistrate in this case) to seek to tender at this late stage of proceedings a further report dealing with the rule as to acting on the uncorroborated testimony of the complainant would certainly fall within the practice criticized by Willmer L.J. I accordingly refused the application."^[8]

The point in that case was that the magistrate had already put in what he certified to be "the reasons" which he delivered in open court when he announced his judgment. He could not, for this reason, add to them or alter them at a later stage although of course, if there was some allegation which did not deal with his "reasons" he would, if it was necessary for the appeal court to know his side of it (which is often not an easy matter to decide) be perfectly entitled to answer it. But the magistrate in that case was on the defensive and he put in a "report" to the appeal Court which argues certain matters which no Court appealed from should do. Since the Judges here know the loneliness which is the fate of so many magistrates, the Appeal Court let this argumentative "report" in. The two documents are set outvat page 442 and 444 of the 1975 volume. Then the magistrate applied to put in a third statement of what was going on in his mind at the time he made his decision. It was that attempt to make a further explanation that the then Chief Justice was speaking about.

The condemnation is against the attempt, after having delivered a judgment, to

"in substance ... re-write his judgment so as to to put a completely different complexion on the issues in dispute"^[9]

and, of course (if I may say so with respect) this is obvious. The appeal Court has to know what actually happened, and that is the "be all and the end all of it". He cannot have that sort of thing for the simple reason that it is a fabrication calculated (in the legal sense of that word) to mislead as to what went on.

The point, however, is that far too many magistrates believe that the then Chief Justice was speaking against a magistrate putting in a report in answer to an untrue allegation made by the appellant as to what happened in court. Nothing could be further from the truth. It is true that, because of a very strict interpretation which once was put on the opening words of section 231 of the District Courts Act, magistrates had to resort to the subterfuge of writing to the Registrar pointing out that the actual "reasons" were delivered orally but that the magistrate would be only too happy, if asked, to state what he recollects them to have been. Those days, however, are happily long since past. The duty of the appeal Court is to know all it can about what actually happened at the hearing and, consequently, it is the duty of the Court appealed from to put in, in as much detail as possible, everything that did happen. But not to do it in an argumentative way.

Now, to get to the appeal itself. The appeal is, as I have said, on the grounds that firstly, six months imprisonment is too severe a sentence in each of the two charges to which appellant pleaded guilty and, secondly that the magistrate was wrong in law in making the two sentences CUMULATIVE. Normally, these two grounds of appeal should be dealt with separately. Because of what I have to say in regard to the second, however, I will deal with them together.

The second ground of appeal is that the magistrate was wrong in law in making the two sentences CUMULATIVE. The point is, however, that Section 20 of the Criminal Code specifically say that a magistrate may make sentences cumulative. As a general proposition it cannot be said that it is wrong to do what the Legislature has specifically said shall be lawful. Moreover, as Minogue C.J. and Frost S.P.J. (as they then were) said in Appeal of Tremellan^[10]

"It cannot be said that the cases show any clearly discernible principle governing the making of sentences cumulative or concurrent. So much depends upon the facts of each particular case and the way in which the judge approaches the imposition of sentence."^[11]

and as Clarkson J. said in the same appeal:

"There is not a great deal of authority to guide a judge in deciding whether sentences should be cumulative or not."^[12]

Perhaps the only real principle which one may deduce is the obvious one that no magistrate should put himself in the position that it could be said of him (as it was of the magistrate in Appeal of PIUS EMBARI)^[13] that

"I think that it may truly be said... that the learned magistrate has purported to exercise sentencing powers statutorily reserved to the Supreme Court"^[14]

This brings me to the point of this appeal. The two charges were for stealing. The Legislature has decreed that, with one exception, stealing charges shall all be reserved to this Court in its non-appeal capacity. That one exception is where (the case falling within certain descriptions as to type) the magistrate is satisfied that a sentence of imprisonment for six months would be a sufficient punishment in the circumstances. This provision can be found in Section 433 of the Criminal Code which goes to say

"If (c) for any reason the Magistrate is of opinion that the charge is a fit subject for prosecution by indictment the Magistrate is required to abstain from dealing with the case summarily."

The facts in these two cases are that Appellant went into a store on 1st March, 1979 and stole two pairs of long trousers which were marked at K17.00. He then took them to another store and sold them for K9.00. He was charged with obtaining that K9.00 by false pretences but that matter is really not before me because it appears that the first of the two convictions appealed against was made concurrent with the sentence then imposed. There is also a sentence for escaping from custody which complicated the issue but it, also, is irrelevant.

The appeal is in regard to the stealing of the two pairs of trousers which commenced the process. It could be said that the magistrate should have decided that the case ought to be dealt with by this court because the defendant was not a first offender but the fact is that the "obtaining money by false pretenses" charge had to follow the first offence in the natural order of things so the magistrate was perfectly right in ignoring this. Moreover, I do not understand Counsel for the appellant to be arguing that the magistrate was wrong in that instance.

The whole of the appeal, in fact, comes down to a submission that it was too severe for appellant to be sentenced to a further six months for going, on the 9th March 1979, into another store and stealing a third pair of trousers. As a proposition of logic, of course, it is clear that a stage must be reached where the magistrate has to say: "This is too big for me" if the offender, instead of being stopped by the magistrate’s sentences, keeps going back into stores and stealing trousers - or anything else. The question, however, is whether this magistrate, in this case, was wrong in deciding that he could still handle this second case of this particular offender in the hope that, by giving him another sentence of six months imprisonment, he might see the error of his ways.

I cannot see that he was wrong. He was thinking of a sentence of twelve months imprisonment, which is not - unreasonable in the circumstances, and it was in respect of two quite different offences which were not only one week apart but there had been a totally different offence committed in between them.

The magistrate was, in fact, still considering the same problem which he had to face in the first stealing case. He had to decide whether he should send the case off to this court to deal with in its "first instance" jurisdiction - where the defendant would be in jeopardy of a sentence with an upwards limit of three years - or whether another sentence of six months would be adequate. I do not see that his decision could be said to be wrong.
I think that it should be clearly understood that when a magistrate is considering the question raised by section 432(ii) he or she is, in the case of someone who is already under sentence, clearly considering the imposition of a cumulative sentence.
I consider that the appeal should be dismissed and (the sentences, accordingly, confirmed.

Appeal dismissed. Sentences confirmed.
Solicitor for Appellant: Public Solicitor W. Amet
Counsel: N. Neill
Solicitor for Respondent: Public Prosecutor
Counsel: Meksen Darius.

^[1] Unreported judgment, Waigani, 20th January, 1981, issued as N320(M)
^[2] Unreported judgment, Port Moresby, 25th September, 1956, bound as page 57 and 67 of volume 2 of the Supreme Court Series. The passage is taken from page 5 of the judgment as issued.
^[3] [1936] HCA 42; (1936) 55 C.L.R. 509 at pages 519, 520.
^[4] [1954] HCA 51; 90 C.L.R. 652, at pp. 655 and 656.
^[5] (1969) 3 All E.R. 1230
^[6] (1969) 3 All E.R. 1230 at p. 1248.
^[7] [1975] PNGLR 439
^[8] [1975] PNGLR 439 at page 444
^[9] [1975] PNGLR 439 at page 444
^[10] [1973] PNGLR 116
^[11] [1973] PNGLR 116
^[12] [1973] PNGLR 116 at page 122
^[13] Unreported judgment 751 of 19th July, 1973 page 3.
^[14] Unreported judgment 751 of 19th July, 1973 page 3.